ENTRANCE
It is the institution of postponement of execution (suspension of execution). When a court decision against a debtor is enforced before it becomes final, the need for legal protection arises. In this context, postponement of execution serves as a temporary and secure legal mechanism that protects the debtor who has filed a legal action from the threat of enforcement until the decision becomes final.
DEVELOPMENT
Deferred execution, regulated under Article 36 of the Enforcement and Bankruptcy Law (EBL), operates by requesting a stay of execution from the enforcement court upon the debtor’s appeal or appeal application. The most prominent features of this institution are as follows:
-Conditional:Legal action must have been taken.
-Collateral obligation:The rights of the creditor are secured.
-Temporariness:Enforcement proceedings remain suspended until the final decision is made.
-It is a tracking barrier:The follow-up proceedings carried out by the enforcement office are temporarily suspended.
With these features, while postponement of execution provides legal protection to the debtor, it does not ignore the interests of the creditor.
A-) Conditions for Postponement of Execution
1-) Condition for Applying to Legal Recourse
The debtor must first appeal or appeal the decision rendered against them. If no legal remedies have been pursued, a request for a stay of execution cannot be made. In this respect, a stay of execution is closely linked to legal remedies.
2-) Request Condition
A stay of execution is not an institution that can be implemented ex officio by the court. To benefit from this protection, the debtor must apply to the enforcement court with a clear declaration of intent. The application can be made either through a written petition or orally, in accordance with the procedure. The Court of Cassation has also clearly emphasized this point: “A stay of execution cannot be issued ex officio without the debtor’s request.”Supreme Court of Appeals General Assembly’s decision dated 15.06.202, number 2017/1680, decision 2021/758;
| “…14. The appeal of judgments (judgments) that can be enforced before they become final does not automatically stay the execution of the judgment. The debtor who appeals the judgment must obtain a stay of execution (suspension of execution) from the Court of Cassation in exchange for security in order to stay the execution of a judgment that has been enforced before it becomes final. |
3-) Security Deposit Requirement
To stay enforcement, the debtor must provide the enforcement office with collateral for the enforcement file, based on the collateral account for three months in advance of the outstanding receivable. The type and amount of collateral are determined by the court:
-Cash or bank guarantee letters are generally accepted.
-Immovable mortgage or third party guarantee may be accepted exceptionally.
-The purpose of the guarantee is to protect the rights of the creditor and prevent possible abuse.
The obligation to provide collateral creates a serious burden for debtors, especially in high-sum cases; therefore, this situation is discussed in the doctrine as an “obstacle to access justice”.
4-) Enforcement Court Decision
Pursuant to the amendment made by Law No. 7343, which came into effect in 2021, requests for a stay of execution are now decided directly by the enforcement court. Previously, requests made to the Regional Court of Justice or the Court of Cassation created confusion in practice.
Enforcement court:
-If the request is accepted, the execution is suspended until the decision becomes final.
-If the request is rejected, enforcement proceedings continue.
5-) Certificate of Expiration
While waiting for the decision of the enforcement court, the debtor may request a temporary suspension document from the enforcement office.
This document is generally valid for 60-90 days. If a decision is not reached within this period, an additional 30-day period must be requested from the enforcement office.
-If the request for a grace period document is rejected by the court, enforcement proceedings will continue from where they left off at the end of the grace period document.
6-) Nature of the Receivable
-Suspension of execution is possible in enforcement proceedings based on a judgment.
-In non-judgment proceedings, the debtor’s complaint or objection methods are regulated separately.
B-) Scope and Effects of Deferral of Execution
-When a decision to postpone enforcement is made, enforcement proceedings are stopped; transactions such as sales and seizures cannot be carried out.
-Previously executed transactions remain valid; only new transactions are blocked.
-If the goods have been sold before the decision is made, the sale transaction is valid, but if the case is concluded in favor of the debtor, the refund mechanism can be applied.
CONCLUSION
The stay of execution is a crucial institution in enforcement law, preserving the balance of interests between the debtor and the creditor. As a natural consequence of the principle that judgments can be enforced before they become final, the debtor must be afforded a certain level of protection during the process of seeking legal action. In this regard, the stay of execution safeguards the debtor’s right to seek legal remedies while simultaneously establishing a fair balance by safeguarding the creditor’s interests through collateral.
Article 36 of the Enforcement and Bankruptcy Law, under which the institution is regulated, allows for the suspension of enforcement proceedings upon the debtor’s request and in return for collateral, thus ensuring a reasonable balance between the interests of the parties until the conclusion of the trial.
In conclusion, the postponement of execution holds an indispensable place in enforcement law, a natural reflection of the rule of law, the right to a fair trial, and the freedom to seek legal remedies. In this respect, the institution remains one of the fundamental mechanisms of contemporary enforcement law, both in protecting the rights of creditors and in safeguarding the legal security of debtors.
MOST WONDERED QUESTIONS ABOUT POSTPONEMENT OF EXECUTION
1-) What is postponement of execution?
It is a legal mechanism that allows for the temporary suspension of enforcement proceedings when a court decision subject to a writ of execution is appealed or appealed by the debtor and the necessary conditions are met.
2-) Which article of law regulates it?
Delay of execution is regulated in Article 36 of the Execution and Bankruptcy Law No. 2004.
3-) Will making the request be enough?
No; the debtor is also required to provide sufficient collateral for the enforcement file.
4-) How is the collateral amount determined?
It is generally determined as the entire amount of the debt plus three months’ interest.
5-) What are the types of collateral?
Cash and bank guarantees are widely accepted. Real estate mortgages or third-party guarantees may be granted in rare cases, but only as an exception. If a guarantee letter is presented, the enforcement court has the authority to review it. The enforcement court determines whether the guarantee letter is valid and sufficient; the enforcement officer cannot review or make a decision on the guarantee letter.
6-) From which authority is the request made?
After the 2021 Reform, the request for postponement of execution is decided by the enforcement court.
7-) What is a certificate of grace?
It is an official document issued by the enforcement office after the security deposit is made, granting time until the decision is received from the court.
😎 How long is the grace certificate valid?
Generally, periods ranging from 60 to 90 days are recognized.
9-) What happens if the grace period expires?
If there is no court decision at the end of the period, enforcement proceedings continue where they left off; the debtor may request additional time.
10-) In which types of execution is postponement of execution applied?
It is only valid in enforcement proceedings with a judgment; it does not apply to enforcement proceedings without a judgment.
11-) Can a request for postponement of execution be made without appealing against the decision?
No; a request for postponement of execution cannot be made without using legal remedies.
12-) How to start the application?
The debtor applies by adding the phrase “deferred execution is requested” to the petition for appeal/appeal.
13-) What happens if the request for postponement of execution is rejected?
If the court rejects the lawsuit, enforcement proceedings proceed immediately; the creditor generally demands payment of the debt from the money deposited as collateral. If the debtor, despite the cash collateral, fails to pay the outstanding debt, the collateral is returned to the debtor.
14-) What happens if the request for postponement of execution is accepted?
The enforcement is suspended; the debtor gains protection until the decision becomes final (appeal).
15-) What happens when the decision becomes final?
– If the decision is in your favor: The security deposit is returned.
– If the decision is against you: The guarantee is paid to the creditor.(Also, if the debtor makes a payment and deposits the debt amount to the enforcement office, the collateral is returned to the debtor.)
16-) Can seizures be lifted by postponement of execution?
No; previous foreclosures will continue. Only new enforcement proceedings will be halted.
17-) Is there a time limit for application?
It can be requested at any stage after the enforcement order has been notified and set aside.
18-) Should it be carried out with a lawyer?
Yes; procedural procedures are complex and it is recommended to seek assistance from a lawyer as the risk of negligence/error is high.
19-) What is the most common mistake made in practice?
Incomplete deposit of security (usually not paying the three-month deposit account), depositing the wrong amount of three months’ rent in the case of a rental eviction stay, requesting a deposit without paying the appeals fees, waiting for the enforcement decision to be postponed from the appellate courts, lacking the unconditional clause in letters of guarantee, court information, and enforcement office information, not submitting a definitive guarantee letter, and finalizing and seizing the enforcement file without obtaining a grace period. These are the most common mistakes made in practice.
COURT OF APPEALS DECISIONS REGARDING SUSPECTATION OF EXECUTION
1-)Supreme Court of Appeals General Assembly’s decision dated 15.06.202, number 2017/1680, decision 2021/758;
| “…14. The appeal of judgments (judgments) that can be enforced before they become final does not automatically stay the execution of the judgment. The debtor who appeals the judgment must obtain a stay of execution (suspension of execution) from the Court of Cassation in exchange for security in order to stay the execution of a judgment that has been enforced before it becomes final. |
2-) Decision of the 12th Civil Chamber of the Supreme Court of Appeals, number 2019/12672, decision number 2019/17345, dated 02.12.2019;
| “…In this case, if a request for postponement of execution is made against the decision of the first instance court and the necessary security is deposited by applying to the enforcement office, the enforcement office must grant a period of time (document of grace) to bring a postponement of execution decision from the Regional Court of Justice. In addition, if the Regional Court of Justice decides to reject the appeal request against the first instance court decision on which the pursuit is based on, the right to appeal against this decision is open and if an appeal petition requesting postponement of execution is filed, the enforcement office must grant a period of time (document of grace) to bring a postponement of execution decision from the Court of Cassation. It has been decided that the discrepancy between the final decisions of the Regional Court of Justice… Civil Chamber and the 12th Civil Chamber of the Regional Court of Justice be resolved in this way…” |
3-) The Supreme Court of Appeals 12th Civil Chamber, case number 2018/6741, decision number 2019/7109, decision dated 30.04.2019;
| “…Even though the letter of guarantee or the cash guarantee presented by the enforcement office for the purpose of granting a grace period in order to obtain a stay of execution decision from the Supreme Court does not replace payment, if the guarantee deposited by the debtor covers the debt of the enforcement proceeding file with all its ancillary obligations as of the date of deposit, there is no doubt that the existing seizures will become excessive and the continuation of the seizures will not be compatible with the final article 85 of the Enforcement and Bankruptcy Law. According to this situation, the court should have decided to remove the liens that have become excessive, since the entire debt (main debt and its subsidiaries) has been deposited with the enforcement office by the debtor. However, the complaint has been rejected with written justification. The judgment is inaccurate…” |